Preview:

Sartin v. Evans

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1991 Term
NO. 20212
JOHN DAVID SARTIN, an infant, by and through
CHARLES SARTIN, his natural parent and legal guardian,
Plaintiff Below, Appellant
v.
TAMMY DEAN EVANS, IDA MAE EVANS, and
CORY PETSCHE,
Defendant Below, Appellee

Appeal from the Circuit Court of Mingo County
Honorable Elliott Maynard, Judge
Reversed and Remanded

Submitted:  September 18, 1991
Filed:  December 13, 1991

William W. Pepper, Esq. Pepper & Nason Charleston, West Virginia Counsel for Appellant William L. Mundy, Esq. Renatha Garner, Esq. Mundy & Adkins Huntington, West Virginia Counsel for Appellee This Opinion was delivered PER CURIAM.
SYLLABUS OF THE COURT
1.
"'A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.'  Syl. Pt. 1, Karnell v. Nutting, [166] W. Va. [269], 273 S.E.2d 93 (1980) citing syl. pt. 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963)."  Syl. Pt. 1, Perlick & Co. v. Lakeview Creditor's Trustee Comm., 171 W. Va. 195, 298 S.E.2d 228 (1982).

2.
"Violation of a statute is prima facie evidence of negligence.  In order to be actionable, such violation must be the proximate cause of the plaintiff's injury."  Syl. Pt. 1, Anderson v. Moulder, ___ W. Va. ___, 394 S.E.2d 61 (1990).


Per Curiam: This is an appeal by John David Sartin from a final order of the Circuit Court of Mingo County dated
November 30, 1990.  The lower court awarded summary judgment in favor of the appellee Cory Petsche. The
appellant contends that the lower court erred in granting summary judgment against him. We agree with the
contentions of the appellant and reverse the decision of the Circuit Court of Mingo County.
I.
On April 12, 1987, the appellant, age 14, was struck by an automobile while he was riding his bicycle on a public highway in Mingo County, West Virginia.  The appellant was riding his bicycle in the right lane of traffic when he was approached from behind by a motorcycle operated by appellee Cory Petsche.  According to the testimony of the appellee and a passenger on the motorcycle, Robin Cooper, the appellant turned his head to look behind him as the motorcycle approached. Although there is conflicting evidence regarding the moment at which the appellant began to direct his bicycle to the left, the appellant did eventually move to the left, and the motorcycle proceeded past the bicycle on the right.  The appellant was then struck by a vehicle approaching from the opposite direction driven by Tammy Dean Evans.  The appellant suffered a severe head injury and permanent brain damage, and he is unable to recall the accident in any detail.
A civil action was initiated by the appellant against Tammy Dean Evans, driver of the vehicle, Ida Mae Evans, owner of that vehicle, and the appellee driver of the motorcycle.  The appellant contends that he was forced to move to the left into the path of oncoming traffic when the motorcycle passed him on the right.  The appellant further contends that the appellee was negligent in passing the appellant on the right and that such action created a rebuttable prima facie presumption of negligence pursuant to W. Va. Code

Download 20212.pdf

West Virginia Law